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Kwake v. Pakseresht

United States District Court, D. Oregon

May 31, 2018

PAUL KWAKE, an individual, ROBERT GEORGE VINDHURST, an individual, and GOERGE ROMINE, an individual, Plaintiffs,
FARIBORZ PAKSERESHT, in his official capacity as Director of Human Services, State of Oregon; et al. Defendants.


          Michael J. McShane United States District Judge

         Plaintiffs are three pro se individuals, two of whom receive adult foster care services from the State of Oregon and one of whom (Mr. Kwake) is their adult foster care provider. Plaintiffs Paul Kwake and Gary Romine move for preliminary injunction requesting additional monthly payment to Mr. Kwake for the services he provides to the two plaintiffs in his care. Pl.'s Mot., ECF No. 15.

         This Court observes that the complaint in this case appears to have been lifted in substantial part from the complaint in another case, a case which deals with dissimilar issues and involves a different program run by a different office within Oregon's Department of Human Services (“Department”).[1] The issue raised here by Plaintiffs' motion for preliminary injunction is the monthly fee that Mr. Kwake receives for providing Mr. Romine's care.

         Because Plaintiffs have not met their burden of showing a likelihood of success on the merits or a likelihood that they will suffer irreparable harm without immediate relief, Plaintiffs' motion for preliminary injunction (ECF No. 15) is DENIED.


         A. Oregon's Adult foster home program

         Oregon's adult foster home program provides necessary care and services to persons 65 years of age and older and to adults with disabilities. See OAR 411-050-0600. The program requires participants (“consumers”) to receive services 24 hours a day, seven days a week, in a provider's residence and not in the consumer's own home. See OAR 411-050-0602(4); Lee Decl. ¶ 4; ECF No. 23. In return the Department provides a flat monthly fee to the adult foster care provider to cover the cost of care for each individual consumer the provider serves. See OAR 411-027-0025; Everidge Decl. ¶ 4, ECF No. 24.

         The reimbursement amount is set out in a rate schedule that has three categories of rates: (1) base rate, (2) base rate plus add-on(s), and (3) hourly exception rates. Everidge Decl. Ex. 2. All consumers receive, at minimum, the base rate. OAR 411-027-0025(2)(a). A consumer may also be eligible for one or more add-on payments, depending on his or her documented needs. OAR 411-0287-0025(2)(c)(A)-(C) (outlining three different types of add-ons). For every consumer, the Department makes a determination about whether add-on payments are warranted. See OAR 411-027-0025(2)(b). If a consumer is eligible for one or more add-ons, the base plus the number of add-ons is then used to determine the service rate for that consumer. Id.; Everidge Decl. ¶ 8.

         The third category of rates is the “exception rate, ” which is considered only when requested by a provider. See OAR 411-027-0050(7); Everidge Decl. ¶ 11. If approved by the Department, exceptional payments are calculated at an hourly rate set by the rate schedule. Everidge Decl. Ex. 2. The administrative rules permit the Department to either approve or deny exception requests. OAR 411-027-0050(7)(e).

         B. Plaintiff's exceptions request is denied

         In January 2018, Mr. Kwake submitted an exceptions request for Mr. Romine. Everidge Decl. ¶ 18. Mr. Kwake noted in the request that Mr. Romine had “paranoid delusional dementia” and needed one-on-one assistance at night to calm him down. Id. To address those alleged needs, Mr. Kwake requested 240 additional service hours per month for Mr. Romine, totaling $3, 146.40. Id. The Department denied the exceptions request because Mr. Kwake failed to demonstrate that Mr. Romine required one-on-one assistance, or that such services were being provided to him. Everidge Decl. ¶ 19. Mr. Romine's services have not changed and have not been reduced since the Department denied the exceptional rate. See. Am. Compl. ¶¶ 18, 23-24.


         A party seeking a preliminary injunction “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008). The mere possibility of irreparable harm is not enough. Rather, the plaintiff must establish such harm is likely. Alliancefor the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The standards for issuing a temporary restraining order are similar to those required for a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. ...

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